State of Louisiana v. William Chester Farry Jr. AKA William Chester Farry AKA William C. Farry AKA William Farry

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-211

STATE OF LOUISIANA

VERSUS

WILLIAM CHESTER FARRY JR.
A/K/A WILLIAM CHESTER FARRY
A/K/A WILLIAM C. FARRY
A/K/A WILLIAM FARRY

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 17654-15
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and D. Kent Savoie, Judges.

CONDITIONALLY AFFIRMED WITH INSTRUCTIONS.

John Foster DeRosier
District Attorney
Karen McLellan
Ross M. Murray
Carla S. Sigler
Assistant District Attorneys
Fourteenth Judicial District Court
Post Office Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
Post Office Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT/APPELLANT:
William Chester Farry Jr.

WILLIAM CHESTER FARRY JR.
A/K/A WILLIAM CHESTER FARRY
A/K/A WILLIAM C. FARRY
A/K/A WILLIAM FARRY
General Population
Louisiana State Prison
Angola, LA 70712

SAVOIE, Judge.

The Defendant, William Farry, was convicted by a jury of armed robbery, a

violation of La.R.S. 14:64. The State charged the Defendant as a habitual offender

pursuant to La.R.S. 15:529.1. The trial court found the Defendant to be a third

habitual offender and sentenced him to life imprisonment.

The Defendant appeals his habitual offender sentence and assigns the

following errors:

1. The trial court failed to properly consider whether a life sentence
was appropriate in this case because the court assumed it did not have
discretion sentencing.

2. The trial court failed to issue written reasons for the Defendant’s
sentence, as is required by the habitual offender statute, and failure to
do so in this case is not harmless error.

3. The trial court erred by not granting the Defendant’s pro se motion
for a new trial on the grounds of ineffective assistance of counsel for
failure to object or to file a motion to reconsider sentence.

For the following reasons, the Defendant’s sentence is conditionally

affirmed with the below instructions.

FACTS

In May 2009, William Farry entered James Fodrie’s home armed with a

baseball bat. He took $15.00, a gun, and a coin bag containing mostly German

coins and currency. The Defendant was convicted of armed robbery, a violation of

La.R.S. 14:64. The conviction was affirmed in the companion case, State v. Farry,

16-210.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find there

are no patent errors.

ASSIGNMENTS OF ERROR
NUMBER ONE AND NUMBER THREE

In assignment of error number one, the Defendant contends that the trial

court failed to properly consider whether a life sentence was appropriate in this

case because the court assumed that, since the Defendant was a third felony

offender, it did not have sentencing discretion.

In this case, the Defendant’s attorney did not request a downward departure

objection on that basis or move to reconsider sentence, and the trial court did not

find a downward departure was warranted on its own. The State citing State v.

Watson, 15-392 (La.App. 3 Cir. 10/7/15), 175 So.3d 1192, properly asserts that,

since the Defendant failed to raise this alleged error in the trial court, it is waived

on appeal. However, the Defendant contends his attorney was ineffective for

failing to object or file a motion to reconsider sentence on this ground.

In State v. Christien, 09-890, p. 7 (La.App. 3 Cir. 2/3/10), 29 So.3d 696,

701, the court explained in pertinent part:

A claim for ineffective assistance of counsel is properly raised
in an application for post-conviction relief because this allows the trial
court to order a full evidentiary hearing on the matter. State v.
Burkhalter, 428 So.2d 449 (La.1983). However, where the record
contains sufficient evidence to decide the issue, and the issue is raised
by an assignment of error on appeal, it may be considered by the
appellate court. State v. Tapp, 08-1262 (La.App. 3 Cir. 4/1/09), 8
So.3d 804; See also State v. James, 95-962 (La.App. 3 Cir. 2/14/96),
670 So.2d 461.

In State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030, the supreme court held

that ineffective assistance of counsel claims regarding sentencing are precluded

from review on post-conviction. The court wrote in pertinent part:

An [sic] habitual offender adjudication thus constitutes sentencing for
purposes of [State ex rel.] Melinie [v. State, 93-1380 (La.1/12/96), 665
So.2d 1172], and La.C.Cr.P. art. 930.3, which provides no vehicle for
post-conviction consideration of claims arising out of habitual

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offender proceedings, as opposed to direct appeal of the conviction
and sentence. La.C.Cr.P. art. 912 (C)(1)(defendant may appeal from a
judgment “which imposes sentence”). A fortiori, respondent’s claim
that he received ineffective assistance of counsel at his habitual
offender adjudication is not cognizable on collateral review so long as
the sentence imposed by the court falls within the range of the
sentencing statutes. Cf. La.C.Cr.P. art. 882.

Id. at 1030-31. Furthermore, in State v. Paulson, 15-454, pp. 9-10 (La.App. 4 Cir.

9/30/15), 177 So.3d 360, 367, the court explained in pertinent part:

Generally, ineffective-assistance-of-counsel claims are more
properly raised in an application for post-conviction relief where the
district court can conduct a full evidentiary hearing on the matter, if
one is warranted. See State v. Leger, 05-0011, p. 44 (La.7/10/06), 936
So.2d 108, 142; see also State v. Small, 13-1334, p. 13 (La.App. 4 Cir.
8/27/14), 147 So.3d 1274, 1283. Nevertheless, where the record
contains evidence sufficient to decide the issue, and it is raised on
appeal by an assignment of error, courts may consider the issue in the
interest of judicial economy. See Leger, 05-0011, p. 44, 936 So.2d at
142. A claim of ineffective assistance of counsel at sentencing,
however, is not cognizable on collateral review, when, as here, the
sentence imposed by the trial judge is within the authorized range of
the sentencing statutes. See State v. Thomas, 08-2912 (La.10/16/09),
19 So.3d 466 (“relator’s claims that the court imposed an excessive
sentence and that he received ineffective assistance of counsel at
sentencing are not cognizable on collateral review”) (emphasis
added). The Louisiana Supreme Court has held that La. C.Cr.P. art.
930.3, which sets forth the grounds upon which post-conviction relief
may be granted, “provides no basis for review of claims of
excessiveness or other sentencing error post-conviction.” State ex rel.
Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; see also State
v. Cotton, 09-2397, p. 2 (La.10/15/10), 45 So.3d 1030, 1031 (per
curiam) (claim that counsel rendered ineffective assistance at habitual
offender adjudication is not cognizable on collateral review so long as
sentence imposed falls within range of sentencing statute).

Therefore, because Mr. Paulson’s ineffective-assistance-of-
counsel-at-sentencing claim is not cognizable in a post-conviction
proceeding, and because the record provides sufficient evidence to
decide the issue, we must consider his ineffectiveness claim on direct
review. Cf. State v. Boyd, 14-0408, pp. 8-9 (La.App. 4 Cir. 2/11/15),
164 So.3d 259, 264 (finding ineffective-assistance-of-counsel-at-
sentencing claim cognizable on direct review, but remanded for
evidentiary hearing because record was insufficient to decide issue).

Since this claim cannot be relegated to post-conviction relief, we will review

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it on appeal.

In order to prove an attorney was ineffective, a defendant must show his

attorney was deficient, and he was prejudiced by the deficiency. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).

As noted above, the Defendant was adjudicated as a third felony offender

pursuant to La.R.S. 15:529.1(A)(b)(ii), which provides for a mandatory sentence of

life imprisonment without the benefit of probation, parole or suspension of

sentence. The Defendant contests the mandatory sentence and argues in pertinent

part:

Here, the trial court felt it had no authority to even consider a
sentence other than life, and thus did not entertain arguments about
whether the statutorily prescribed sentence was constitutional in this
case. As such, the court did not mention the aggravating or mitigating
factors in this case, as per La. C. Cr. P. art. 894.1. The trial court
never expressed whether it considered: the fact that William’s two
prior felony convictions were for the non-violent crime of Simple
Burglary, the fact that no one was hurt in this case, or that a firearm
was not used. See State v. Hayes, 97-1526 (La. App. 1 Cir. 6/25/99);
739 So. 2d 301, 303-04 (finding that under the Johnson analysis, a life
sentence for a Third Felony Offender with prior non-violent theft
related crimes was constitutionally excessive in that case).

The trial court never considered whether a downward deviation
was warranted under Dorthey in this case. Therefore, even if the court
finds evidence was sufficient in this case to support William’s
conviction in KA-16-0210, William’s case should be sent back to the
trial court for a new sentencing hearing so the trial court can consider
arguments regarding whether a life sentence in this case was
constitutional or not. See, e.g., State v. Sims, 13-0177 (La. App. 4 Cir.
8/28/13); 123 So. 3d 806, 814.

Thus, the Defendant requests this matter be remanded to the trial court for a

hearing on whether or not a downward deviation was warranted pursuant to State

v. Dorthey, 623 So.2d 1276 (La.1993).

The State responds in pertinent part:

4

Because there was no reasonable probability that the trial court
would have reduced the Defendant’s sentence had defense counsel
objected or filed a motion to reconsider sentence, the defendant did
not receive ineffective assistance of counsel. The State has already
established that the Defendant was appropriately sentenced and not
entitled to a deviation from the mandatory sentence.

In Dorthey, 623 So.2d 1276, the state appealed a judgment of the Orleans

Parish Criminal District Court holding that the Habitual Offender Statute, La.R.S.

15:529.1, was unconstitutional because it violated the separation of powers clause

of the 1974 Louisiana Constitution. The Defendant sought a downward departure

from the statutory mandatory minimum. The supreme court found La.R.S.

15:529.1 was not unconstitutional, but the defendant’s habitual offender sentence

should be remanded to the trial court for a hearing. The court explained:

[W]e recognize that the review of sentencing, including sentencing
under R.S. 15:529.1, is a long established function of the judicial
branch. Accordingly, Louisiana’s judiciary maintains the distinct
responsibility of reviewing sentences imposed in criminal cases for
constitutional excessiveness. State v. Sepulvado, 367 So.2d 762
(La.1979). According to Sepulvado, the 1974 Louisiana Constitution,
Article I, Section 20 “‘gives the courts, in the exercise of their judicial
power, a basis for determining that sentences, whether fine,
imprisonment or otherwise, though not cruel or unusual, are too
severe as punishment for certain conduct and thus unconstitutional. It
is a basis for extending the court’s control over the entire sentencing
process.’” Id. at 766, citing “The Declaration of Rights of the
Louisiana Constitution of 1974”, 35 La.L.Rev. 1, 63 (1974). Thus,
“[t]he imposition of a sentence, although within the statutory limit,
may violate a defendant’s constitutional right against excessive
punishment . . .” Id. at 767. Accordingly, under the 1974 Constitution
“the excessiveness of a sentence becomes a question of law
reviewable under the appellate jurisdiction of this court.” Id. at 764.

“A punishment is constitutionally excessive if it makes no
measurable contribution to acceptable goals of punishment and is
nothing more than the purposeless imposition of pain and suffering
and is grossly out of proportion to the severity of the crime.” State v.
Scott, 593 So.2d 704, 710 (La.App. 4th Cir.1991); State v. Lobato,
603 So.2d 739, 751 (La.1992).

The record indicates that the trial judge had difficulty imposing
a twenty year sentence on a twenty seven year old crack cocaine

5

addict simply because he had been convicted for a fourth time for
possession of cocaine. If, in this case when defendant is ultimately
sentenced, the trial judge were to find that the punishment mandated
by R.S. 15:529.1 makes no “measurable contribution to acceptable
goals of punishment” or that the sentence amounted to nothing more
than “the purposeful imposition of pain and suffering” and is “grossly
out of proportion to the severity of the crime”, he has the option,
indeed the duty, to reduce such sentence to one that would not be
constitutionally excessive. Accordingly, we will remand this case to
the district court for resumption of its multiple bill proceedings, for its
determination as to whether the minimum sentence mandated for this
habitual criminal defendant by virtue of R.S. 15:529.1 for simple
possession of cocaine is constitutionally excessive as applied to this
particular defendant, and for appropriate sentencing.

Id. at 1280-81(footnotes omitted).

In State v. Cole, 12-1404 (La.App. 3 Cir. 4/24/13), 156 So.3d 75, the

defendant was found guilty of armed robbery. He was adjudicated as a fourth

felony habitual offender. The trial court deviated below the mandatory minimum

sentence of ninety-nine years imprisonment and sentenced the defendant to ten

years at hard labor. The State appealed. This court vacated the trial court’s

sentence writing in pertinent part:

In State v. Johnson, 97-1906, pp. 6-9 (La.3/4/98), 709 So.2d
672, 676-77, the Louisiana Supreme Court discussed downward
departures as follows:

In State v. Dorthey, [623 So.2d 1276 (La.1993),]
this Court held that a trial court must reduce a
defendant’s sentence to one not constitutionally
excessive if the trial court finds that the sentence
mandated by the Habitual Offender Law “makes no
measurable contribution to acceptable goals of
punishment”, or is nothing more than “the purposeful
imposition of pain and suffering” and is “grossly out of
proportion to the severity of the crime.” Id. at 1280-81.
Finding a mandatory minimum sentence constitutionally
excessive requires much more, though, than the mere
utterance of the phrases above.

A sentencing judge must always start with the
presumption that a mandatory minimum sentence under
the Habitual Offender Law is constitutional. See State v.

6

Dorthey, supra at 1281 (Marcus, J., concurring); State v.
Young, [94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d
525]. A court may only depart from the minimum
sentence if it finds that there is clear and convincing
evidence in the particular case before it which would
rebut this presumption of constitutionality.

A trial judge may not rely solely upon the non-
violent nature of the instant crime or of past crimes as
evidence which justifies rebutting the presumption of
constitutionality. While the classification of a defendant’s
instant or prior offenses as non-violent should not be
discounted, this factor has already been taken into
account under the Habitual Offender Law for third and
fourth offenders. LSA-R.S. 15:529.1 provides that
persons adjudicated as third or fourth offenders may
receive a longer sentence if their instant or prior offense
is defined as a “crime of violence” under LSA-R.S.
14:2(13). Thus the Legislature, with its power to define
crimes and punishments, has already made a distinction
in sentences between those who commit crimes of
violence and those who do not. Under the Habitual
Offender Law those third and fourth offenders who have
a history of violent crime get longer sentences, while
those who do not are allowed lesser sentences. So while
a defendant’s record of non-violent offenses may play a
role in a sentencing judge’s determination that a
minimum sentence is too long, it cannot be the only
reason, or even the major reason, for declaring such a
sentence excessive.

Instead, to rebut the presumption that the mandatory minimum
sentence is constitutional, the defendant must clearly and
convincingly show that:

[he] is exceptional, which in this context means that
because of unusual circumstances this defendant is a
victim of the legislature’s failure to assign sentences that
are meaningfully tailored to the culpability of the
offender, the gravity of the offense, and the
circumstances of the case.

Young, 94-1636 at pp. 5-6, 663 So.2d at 528 (Plotkin, J., concurring).

When determining whether the defendant has met his burden of
proof by rebutting the presumption that the mandatory minimum
sentence is constitutional, the trial judge must also keep in mind the
goals of the Habitual Offender Law. Clearly, the major reasons the
Legislature passed the Habitual Offender Law were to deter and

7

punish recidivism. Under this statute the defendant with multiple
felony convictions is treated as a recidivist who is to be punished for
the instant crime in light of his continuing disregard for the laws of
our state. He is subjected to a longer sentence because he continues
to break the law. Given the Legislature’s constitutional authority to
enact statutes such as the Habitual Offender Law, it is not the role of
the sentencing court to question the wisdom of the Legislature in
requiring enhanced punishments for multiple offenders. Instead, the
sentencing court is only allowed to determine whether the particular
defendant before it has proven that the mandatory minimum sentence
is so excessive in his case that it violates our constitution.

After the decision in Dorthey, 623 So.2d 1276, there was an
increase in appeals from downward departures from mandatory
minimum sentences. In State v. Lindsey, 99-3302 (La.10/17/00), 770
So.2d 339, 343, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149
L.Ed.2d 663 (2001), the court held for a defendant to rebut the
presumption that the mandatory minimum sentence is constitutional,
he must show:

[H]e is exceptional, which in this context means that
because of unusual circumstances this defendant is a
victim of the legislature’s failure to assign sentences that
are meaningfully tailored to the culpability of the
offender, the gravity of the offense, and the
circumstances of the case.

In Lindsey, the defendant was convicted of simple robbery,
adjudicated a fourth felony offender, and sentenced to life
imprisonment at hard labor without benefit of probation, parole, or
suspension of sentence. Lindsey argued his sentence was excessive,
noting he had prior convictions for attempted simple burglary,
attempted burglary, and simple burglary. The supreme court found
that Lindsey’s sentence was not excessive, stating:

[H]e is exactly the type of offender that the Habitual
Offender Statute intends to punish so severely. He is
sentenced to life imprisonment because he continues to
commit felony after felony. The fact that his last felony
was the only violent crime against a person is not an
“unusual circumstance” that would support a downward
departure. A person with three prior non-violent felony
convictions who then proceeds to commit a felony
involving violence against a person has shown that his
criminal conduct is becoming worse. The goals of the
Habitual Offender Statute, to deter and punish
recidivism, are satisfied by imposing a life sentence
against such a person.

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Id. at 344.

Clearly, the supreme court in Lindsey emphasized that a
defendant’s non-violent record is a factor, but cannot be the only
reason the sentencing judge uses to depart from the sentence required
by the Habitual Offender Law. A review of the record indicates the
sentencing judge in this case was presented with numerous factors
leading to his determination to find the sentence mandated by the
Habitual Offender Law was excessive in this case. After a thorough
review, we find the record and the jurisprudence supports the
sentencing judge’s conclusion that there were several factors which
clearly and convincingly established Defendant was exceptional, and,
due to the particular circumstances of his case, the legislature failed to
fashion a meaningful sentence to match the culpability of the offender
and the gravity of the offenses.

We find the instant case is similar to the facts in State v. Combs,
02-1920 (La.App. 4 Cir. 5/21/03), 848 So.2d 672. In Combs, the
underlying conviction was for possession of cocaine, and he was
adjudicated a third felony offender (the previous felonies were for
possession of cocaine and forgery). He was subsequently sentenced
to life imprisonment. The fourth circuit found the defendant’s
sentence was excessive, as the defendant was thirty-two years of age,
had a supportive family who wanted to help him, was not in
possession of a weapon when arrested, was only a petty street drug
pusher, and was a non-violent offender. Based on these facts, the
appellate court found the life sentence was constitutionally excessive
and remanded for re-sentencing.

Similarly, in State v. Wilson, 37,555 (La.App. 2 Cir. 11/6/03),
859 So.2d 957, writ denied, 03-3232 (La.6/4/04), 876 So.2d 73, the
second circuit found the facts presented justified a downward
departure. In Wilson, the defendant was convicted of first degree
robbery, adjudicated a fourth felony offender, and sentenced to life
imprisonment. On appeal, the second circuit reduced the defendant’s
conviction to simple robbery, and he was resentenced to life
imprisonment without benefits. The defendant appealed, alleging the
mandatory life sentence was unconstitutional as applied to him.

The second circuit noted the defendant had prior convictions
that resulted in prison terms of six months, ten months, and two years.
The six-month and two-year sentences were initially suspended, but
eventually served, because the defendant failed to report monthly to
his probation officer. The second circuit concluded the defendant’s
prior convictions did not reach a level of culpability and gravity
warranting a life sentence and stated:

Defendant is 42 years old and homeless. After he
was arrested, he gave the police a recorded statement

9

admitting he was depressed over the death of his son in a
train accident on June 29, 1999. He admitted that he has
a history of drug and alcohol abuse. He stated that he
was drunk at the time he committed the robbery, and felt
“hopeless.”

....

The supreme court in Johnson, supra, made clear
that the fact that defendant’s felonies are non-violent
alone is not sufficient to override the legislatively
designed sentences of the Habitual Offender Law.
Johnson, 709 So.2d at 676. But, it did note that, “the
classification of a defendant’s instant or prior offenses as
non-violent should not be discounted.” Id. Three of
defendant’s four felonies were non-violent. Even his
fourth felony, while classified as a violent offense,
involved no actual violence. Cf. State v. Hayes[, 97-1526
(La.App. 1 Cir. 6/25/99), 739 So.2d 301]. There is also
no evidence in the record that defendant ever possessed a
dangerous weapon, and Ms. Cone, the victim, testified
that she never felt threatened.

Furthermore, this particular life imprisonment
imposes an undue burden on the taxpayers of the state,
who must feed, house, and clothe this defendant for life.
State v. Hayes, 739 So.2d at 303. As defendant ages,
these costs will only increase due to the need for geriatric
health treatments.

The defendant in this case obviously needs lengthy
incarceration. We believe that a severe sentence in this
case, for example, a sentence of not less than 20 years, in
conformity with La. R.S. 15:529(A)(1)(c)(i), but not
more 30 years at hard labor, would meet all of the
societal goals of incarceration and be constitutional in
this case.

For all the reasons above, and after a review of the
facts and circumstances of this particular defendant and
the instant crime, we find clear and convincing evidence
that this defendant is a victim of the legislature’s failure
to assign sentences that are meaningfully tailored to the
culpability of the offender, the gravity of the offense, and
the circumstances of the case. A sentence of life
imprisonment for this defendant, on this record, is
“disproportionate” to the harm done and shocks “one’s
sense of justice.” State v. Lobato [, 603 So.2d 739
(La.1992)]. Thus, we are unable to conclude that this life

10

sentence is not excessive under the constitutional
standard.

Id. at 964-65.

In State v. Hayes, 97-1526 (La.App. 1 Cir. 6/25/99), 739 So.2d
301, writ denied, 99-2136 (La.6/16/00), 764 So.2d 955, the defendant
was convicted of theft by misappropriating or taking over $500,
adjudicated a third felony offender, and sentenced to life
imprisonment without benefit of probation, parole, or suspension of
sentence. The first circuit noted the defendant admitted the theft and
returned $693.00. It further noted:

Mr. Hayes was 34 at the time of sentencing. The
parole and probation officer recommended a sentence of
10 years. The manager of the business, from whom Mr.
Hayes stole the money, stated that he would like Mr.
Hayes to serve time, and hoped Mr. Hayes would be
rehabilitated after serving time. At the time of the theft,
Mr. Hayes had a second employer, who thought highly of
Mr. Hayes. The employer found Mr. Hayes to be a good
employee, and believed that Mr. Hayes could be
rehabilitated.

Mr. Hayes’ criminal record contained the
following convictions: two thefts under $100, one theft
over $100, several counts of issuing worthless checks,
check forgery, simple robbery, and the instant offense,
theft of over $500. The simple robbery, was the “ ‘crime
of violence’” necessary for the life imprisonment
sentence. La. R.S. 14:2(13); La. R.S. 14:2(13)(y); La.
R.S. 15:529.1A(1)(b)(ii). The simple robbery occurred in
1991, when Mr. Hayes pushed a minor, and stole his
bicycle. None of Mr. Hayes’ crimes involved a
dangerous weapon.

This particular life imprisonment imposes an
undue burden on the taxpayers of the state, who must
feed, house, and clothe this defendant for life. Mr. Hayes
is a tenacious thief. He obviously needs lengthy
incarceration. However, a severe sentence, for example,
between twenty and forty years, would have met all of
the societal goals of incarceration.

Id. at 303. The first circuit then vacated the defendant’s sentence and
remanded the matter for resentencing.

The record establishes Defendant’s three prior felony offenses
were non-violent (three forged checks which totaled less than

11

$600.00) and, according to the unrebutted testimony of Dr. Forsythe,
were best classified as petty theft. The record also established
Defendant had a history of gainful employment and was thought
highly of by his employer. His children told Dr. Forsythe their father
was a good man and had been loving and supportive. The sentencing
judge clearly placed great stock in Dr. Forsythe’s belief that
Defendant’s actions in committing armed robbery, while serious and
deserving of punishment, reflected a spur of the moment plan.
Defendant made no attempt to hide his identity, and Dr. Forsythe
emphasized Defendant clearly took steps to minimize the possibility
of injury to the victims by placing them in the bathroom of the hotel
room. Dr. Forsythe characterized this particular armed robbery as
“low.”

Furthermore, this particular sentence, effectively amounts to a
life sentence for Defendant due to his age. As the courts in Hayes and
Wilson noted, such a lengthy sentence imposes an undue burden on
the taxpayers of the state, which will only increase as Defendant ages.
While we note the armed robbery committed by Defendant in this
case did involve the use of a weapon, which distinguishes it from the
facts in Wilson, 859 So.2d 957, Hayes, 739 So.2d 301, and Combs,
848 So.2d 672, the facts indicated the weapon used, while
unquestionably dangerous, was a weapon conveniently available to
Defendant at his job, and Defendant attempted to isolate the victims
from any harm by locking them in the bathroom. Therefore, we find
no error on the part of the sentencing judge in concluding Defendant
put forth clear and convincing evidence that would justify a
downward departure.

However, we note the supreme court in Johnson clearly stated
that even when a sentencing judge finds clear and convincing
evidence to justify a downward departure from the maximum sentence
under the Habitual Offender Law, “[the judge] is not free to sentence
a defendant to whatever sentence he feels is appropriate under the
circumstances.” The supreme court instructed:

[T]he judge must sentence the defendant to the longest
sentence which is not constitutionally excessive. This
requires a sentencing judge to articulate specific reasons
why the sentence he imposes instead of the statutory
mandatory minimum is the longest sentence which is not
excessive under the Louisiana Constitution. Requiring a
sentencing judge to re-sentence a defendant in this
manner is in keeping with the judiciary’s responsibility to
give as much deference as constitutionally possible to the
Legislature’s determination of the appropriate minimum
sentence for a habitual offender.

Johnson, 709 So.2d at 677.

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A review of the record finds the sentencing judge failed to
articulate specific reasons as to why he found the mandatory
minimum sentence was not appropriate. Louisiana Revised Statutes
15:529.1(A)(4)(b) provides “the person shall be sentenced to
imprisonment for the fourth or subsequent felony for a determinate
term not less than the longest prescribed for a first conviction but in
no event less than twenty years and not more than his natural life.”
Therefore, we reverse Defendant’s sentence and remand the case with
the following instructions set forth in this decree.

Id. at 79-84.

In the present case, the Defendant asserts in pertinent part:

Here, trial counsel failed to file a motion to reconsider the life
sentence William received, in which the trial court did not analyze the
sentence to determine if it was constitutional in this case. There could
be absolutely no strategic reason for trial counsel’s failure to do so in
this case. There was no negotiated plea that barred appellate review of
the sentence, the trial courts [sic] stated reasons for the sentence were
based on a misunderstanding of the Supreme Court’s well established
precedent, and William is facing the rest of his life in jail for this
crime. Even if trial counsel, like the trial court, misunderstood the law
while in court at the sentencing hearing and did not object to the
sentence, the code gives him the ability to research the issue and file
the motion to reconsider up to 30 days after the hearing. La. C. Cr. P.
art. 881.1(A)(1). Counsel failed to do so in this case. If this Court
finds that assignment of error 1 is barred by trial counsel’s failure to
file this routine, but crucial, motion, counsel’s ineffectiveness and
William’s prejudice would be self-evident in this matter. See La. C.
Cr. P. art. 881.1(E) (Failure to file a motion to reconsider sentence
precludes appellate review of whether a sentence is excessive), see
also State v. Hayes, 97-1526 (La. App. 1 Cir. 5/15/98); 712 So. 2d
1019, 1022 (Counsel was ineffective for not filing a motion to
reconsider life sentence for Third Felony Offender whose prior crimes
were non-violent theft related crimes). William should have a new
sentencing hearing that complies with the constitutional and statutory
requirements to justify a life sentence.

The thirty-year-old Defendant’s previous crimes used to enhance his present

conviction were two counts of simple burglary; one in February 2004 and the other

in June 2006. The penalty range for simple burglary was imprisonment up to

twelve years at hard labor. The trial court did not set forth any reasons for

imposing the sentence since it carried a mandatory sentence. Additionally, the

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record before this court does not reflect there was a pre-sentence investigation

report considered by the trial court. 1 Thus, the record before this court is

insufficient to review this claim as in Boyd, 164 So.3d 259 and cited in Paulson.

In Boyd, the court wrote in pertinent part:

Not only is the record as presently constituted insufficient for
us to decide whether Mr. Boyd can establish both prongs of the
Strickland test, but also, as we have already stated, the particular trial
judge who actually imposed the thirty-five year sentence is best
situated to decide whether any deficiency on the part of sentencing
counsel resulted in a significantly harsher sentence for Mr. Boyd.

We therefore remand the matter to the trial court for a full
evidentiary hearing and decision on Mr. Boyd’s ineffective-
assistance-of-counsel-at-sentencing claim. See [State v.] Sparks, 88-
0017, p. 66; 68 So.3d [435] at 485 (citing State v. Strickland, 94-0025,
p. 51 (La.11/1/96); 683 So.2d 218, 238-9). In connection with the
claim and hearing, the trial court shall ensure that Mr. Boyd, who is
indigent, is represented by conflict-free counsel. See La. R.S. 15:175
A(1)(d); Martinez v. Ryan, ___ U.S. ___, ___, 132 S.Ct. 1309, 1317-
8, 182 L.Ed.2d 272 (2012); State v. Carter, 10-0614, pp. 5-6
(La.1/24/12); 84 So.3d 499, 508-9.

Id. at 264-65. Consequently, this issue is remanded to the trial court for an

evidentiary hearing to be held in accordance with the court’s opinion.

ASSIGNMENT OF ERROR NO. 2

The Defendant contends that the trial court erred in failing to issue written

reasons. The Defendant argues in pertinent part:

The trial court also failed to comply with the requirements of
the Habitual Offender law which states that the sentencing “court shall
provide written reasons for its determination.” La. R.S. §
15:529.1(D)(3). Although appellate courts have held that this is
normally a harmless error when the trial court has stated on the record
and in transcripts the reasons for the sentence that was imposed, here,
as stated in assignment of error 1, the trial court was incorrect in its
assumption that there was no discretion in the sentence. Thus, the

1
At the habitual offender hearing, the trial judge acknowledged that he received letters on
behalf of the Defendant from the Defendant’s parents, the Defendant’s brother, his brother’s
girlfriend, and the Defendant’s sister. The trial court stated that the letters requested mercy and
possibly probation. Copies of the letters are located in the record in Farry, 16-210.

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transcripts of the sentencing in this case are not sufficient to document
to William or this Court the “reasons for [the trial court’s]
determination.” La. R.S. § 15:529.1(D)(3).

Therefore, even if there is sufficient evidence for the conviction,
this case should be sent back to the trial court for a new sentencing
hearing where the trial court can either state for the record whether a
life sentence is constitutional in this case, if so, why it is constitutional,
or if not, what sentence is constitutional. Further, the trial court should
provide the statutorily required written reasons for its ruling.

Louisiana Revised Statutes 15:529.1(D)(3) provides:

When the judge finds that he has been convicted of a prior
felony or felonies, or if he acknowledges or confesses in open court,
after being duly cautioned as to his rights, that he has been so
convicted, the court shall sentence him to the punishment prescribed
in this Section, and shall vacate the previous sentence if already
imposed, deducting from the new sentence the time actually served
under the sentence so vacated. The court shall provide written reasons
for its determination. Either party may seek review of an adverse
ruling.

In State v. Dukes, 46,029, p. 15 (La. App. 2 Cir. 1/26/11), 57 So.3d 489,

496, writ denied, 11-443 (La. 3/2/12), 83 So.3d 1033, the court explained, in

pertinent part:

Because the sentence imposed for the habitual offender
adjudication is prescribed by statute, the trial court’s compliance with
La. C. Cr. P. art. 894.1 is not required. State v. Thomas, 41,734
(La.App.2d Cir.1/24/07), 948 So.2d 1151, writ denied, 2007-0401
(La.10/12/07), 965 So.2d 396; State v. Gay, 34,371 (La.App.2d
Cir.4/4/01), 784 So.2d 714. It would be an exercise in futility for the
trial court to discuss the factors enumerated in that article when the
court had no discretion in sentencing the defendant. State v. Sewell,
35,549 (La.App.2d Cir.2/27/02), 811 So.2d 140, writ denied, 2002-
1098 (La.3/21/03), 840 So.2d 535.

Louisiana Code of Criminal Procedure Article 894.1(C) provides: “The

court shall state for the record the considerations taken into account and the factual

basis therefor in imposing sentence.”

In this case, the trial judge noted that he had no discretion in sentencing as

there was one penalty, and he did not articulate reasons for the sentence.

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Following, the trial judge imposed the mandatory sentence of life imprisonment

without the benefit of parole, probation or suspension of sentence.

Pursuant to Williams, we find the trial court did not err in failing to articulate

reasons for the mandatory sentence. This assignment lacks merit.

DECREE

The Defendant’s sentence is conditionally affirmed. This case is remanded

to the trial court to conduct an evidentiary hearing in order to determine whether

the Defendant’s attorney was ineffective for failing to object or to file a motion to

reconsider sentence on the basis that a downward departure of the mandatory

sentence was warranted. If the evidence shows that the Defendant’s attorney was

ineffective, the trial court must set aside the Defendant’s sentence and resentence

him. The Defendant may appeal from any adverse ruling on this issue, and in the

absence of such appeal, this court affirms the Defendant’s sentence. See State v.

R.W.W., 06-1253 (La.App. 3 Cir. 3/7/07), 953 So.2d 131, writ denied, 07-820 (La.

3/27/09), 5 So.3d 130.

CONDITIONALLY AFFIRMED WITH INSTRUCTIONS.

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